Beach lawsuits explained

Thursday

Sep 4, 2014 at 2:00 AM

WELLS — The evolution of public access and private ownership of Maine's beaches was explored at the Wells Reserve last week, including an intimate look at local lawsuits, what led to them, and the lessons learned.

Jennifer Feals

WELLS — The evolution of public access and private ownership of Maine's beaches was explored at the Wells Reserve last week, including an intimate look at local lawsuits, what led to them, and the lessons learned.

In the second part of a series at Wells Reserve at Laudholm, titled "From Moody to Goose Rocks: Whose Shoreline Is It?" held on Thursday, Aug. 28, attorneys Sidney "Pete" Thaxter and Ben Leoni, of the Portland law firm Curtis Thaxter, discussed the Wells and Kennebunkport lawsuits over beach access. The two represented plaintiffs in the Goose Rocks Beach lawsuit.

"We want to raise awareness and understand these are complex. It's always good to hear from people who live it," said Paul Dest, director of the Wells Reserve. "Perhaps we'll take some lessons away from this."

The timing of the series comes 25 years after the Moody Beach case in Wells, in which the court ruled that the public has very limited rights to use privately owned land in the intertidal zone — what is the land between high and low tides. Thaxter also represented coastal property owners in that case. He presented oral arguments before the Supreme Court in Moody Beach in 1988 and Goose Rocks Beach in 2013.

"I feel very privileged to have these cases that are sort of landmark cases," Thaxter said. "There's a great deal of misinformation out there. For those of you who may have been misinformed, I hope that this will help set the record straight."

When the Moody case began, Thaxter said there was "a lot of pressure to have beach access." The property owners along the beach asked the town for some help, for instance having bathrooms along the beach.

"It wasn't too long that it got to be a problem. Many people had been there for years and years and they had a nice community. They initially were only asking for some help from the town," Thaxter said. "The town said no, we don't recognize your right, we think the public has access."

If the two sides had simply talked, Thaxter said he thinks the case could have turned out differently.

"If they actually talked to these people, they may have gotten a lot further," he said. "You've got to talk first and act later."

After the case came to an end, Thaxter said "all was quiet" until the Goose Rocks Beach case. The York County Superior Court ruled in favor of the town of Kennebunkport awarding the public a recreational easement in October 2012. Plaintiffs have appealed their case to the Maine Supreme Court.

Until the early 2000s, Goose Rocks Beach was quiet and there were few people, Thaxter said. The beach had been treated as a private beach, Thaxter said, but in 2005, the town changed its policy saying police could no longer enforce private property rights.

"It was clear to these people that the town was working on a prescriptive easement case, so they had no choice," Thaxter said of his clients. "They were going to lose their control."

The "saddest" part of the case has been what's happened to the community of Goose Rocks Beach, Leoni said.

"I think any one down there will say it's been extraordinarily divisive," he said. "There's very little trust right now with the town, back lot owners and beach front owners. When you meet someone face to face you start to build trust."

Kennebunkport Town Attorney Amy Tchao did attend the lecture and disagreed with the change to policy in 2005 that Thaxter referenced. Tchao said the idea that the policy caused the lawsuit is incorrect and the town "doesn't believe that's true."

Tchao also said that 60 percent of the beach is open to the public through a beach use agreement.

"I hope people won't lose sight of that fact that in itself is a success story," Tchao said, adding that a Beach Use Committee was also created. "Of course litigation has a way to divide the community but the committee is trying to do its job."

The third and final part of the beach access series will be held on Oct. 2 at the Wells Reserve.

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